Entajul Sk @ Intajul Sk vs The State Of West Bengal & Anr
2022 Latest Caselaw 506 Cal

Form J(2)        IN THE HIGH COURT AT CALCUTTA
                    Criminal Appellate Jurisdiction
                            Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri

                             C.R.A. 632 of 2016

                      Entajul Sk @ Intajul Sk.
                                Vs.
                    The State of West Bengal & Anr.



For Appellant            :       Mr. Kushal Kumar Mukherjee, Adv.


For the State            :       Mr. Prasun Kumar Dutta, Adv.,
                                 Mr. Sandip Chakraborty, Adv.


Heard & Judgment on:             11.02.2022


Bibek Chaudhuri, J.

Judgment and order of conviction and sentence dated 23 rd

August, 2016 passed by the learned Additional Sessions Judge,

Nabadwip, Nadia in Sessions Trial No.48(Sept) 15 corresponding to

Sessions Case No.7(9) 15 thereby convicting the appellant for the

offence under Section 354 of the Indian Penal Code and sentencing

him to suffer rigorous imprisonment for one year with fine and default

clause, is assailed in the instant appeal.

The appellant is the brother-in-law of the de facto complainant.

Elder brother of the appellant is the husband of the de facto

complainant. On 23rd March, 2015 she lodged a written complaint

before the Officer-in-charge, Nabadwip Police Station stating, inter

alia, that her husband used to work in Kerala at the relevant point of

time. In absence of her husband she used to stay at her matrimonial

home with her minor child. The brother-in-law and parents-in-law of

the de facto complainant used to stay in the same house with her. It

is alleged by the de facto complainant that in absence of her husband

her brother-in-law namely Entajul Sk @ Intajul Sk used to give bad

proposal to her. On 21 st March, 2015 at about 4 P.M. the said Entajul

Sk @ Intajul Sk pounced upon her and tried to commit rape upon her.

She somehow resisted the accused and informed the incident to her

father-in-law and mother-in-law. But they and Entajul Sk @ Intajul

Sk assaulted her indiscriminately. They also tried to commit murder of

the de facto complainant by strangulation. When she was raising hue

and cry, her younger son rushed to the room where the incident took

place and somehow saved his mother. Immediately they left the said

house and started to come to Chapra to her paternal home by bus.

After getting down at Chapra from bus the de facto complainant lost

her sense. Her father got the information and admitted her to the

local hospital. On the basis of the said complaint police registered

Nabadwip Police Station Case No.134 of 2015 dated 23 rd March, 2015

against the accused persons and took up the case for investigation.

On completion of investigation charge sheet was submitted against

the accused Entajul Sk @ Intajul Sk under Sections 376/511 and

Sections 323/34 of the Indian Penal Code. Charge sheet was also

submitted against other two accused persons under Sections 323/34

of the Indian Penal Code.

As the offence under Sections 376/511 of the Indian Penal Code

was exclusively triable by the Court of Sessions, the case was

committed to the Court of the learned Additional Sessions Judge at

Nabadwip. The appellant and other accused persons duly appeared

before the learned Additional Sessions Judge, Nabadwip to face trial.

Charge sheet was framed against Entajul Sk @ Intajul Sk under

Sections 376/511 of the Indian Penal Code as well as under Sections

323/34 of the Indian Penal Code. The charge against the father-in-

law and mother-in-law of the de facto complainant was framed under

Sections 323/34 of the Indian Penal Code. As the accused persons

pleaded not guilty, trial of the case commenced.

During trial, prosecution examined as many as ten witnesses.

They were duly cross-examined. The defence case as disclosed from

the cross-examination of the witnesses on behalf of the prosecution

and examination of the accused persons under Section 313 of the

Code of Criminal Procedure appears to be complete denial of the

prosecution story.

The learned trial Judge on due consideration of evidence on

record and argument advanced by the prosecution and the defence

convicted the accused Entajul Sk @ Intajul Sk for the offence under

Section 354 of the Indian Penal Code and sentenced him accordingly.

Other two accused persons were acquitted from the charge.

The convict/appellant has assailed the judgment and order of

conviction and sentence in the instant appeal.

During trial of the case, the de facto complainant deposed as

P.W.1. It is ascertained from her evidence that on 21 st March, 2015 at

about 4 P.M. when she was sleeping in her room, the appellant

entered into her room and gave bad proposal to her. Thereafter, he

jumped upon her in order to commit rape. The de facto complainant

forcibly removed him from her body but still he was in her room. She

then informed the matter to her parents-in-law but they did not

believe the said allegation and tried to commit murder of the de facto

complainant by strangulation. At that time the younger son of the de

facto complainant rushed to the room and seeing the incident he

started shouting. At that time the accused persons left her. Then she

managed to leave her room and went to her paternal home at Chapra

by bus. After getting down from the bus at Chapra bus stand she

became unconscious and fell down on the ground. Local people took

her to the hospital. Her parents also came to the hospital. She was

admitted to the hospital for three days. After she was discharged

from the hospital, she went to Mayapur Police Station to lodge

complaint. The police at Mayapur then told her to go to Nabadwip

Police Station. She went to Nabadwip Police Station and lodged a

complaint. It was written by her elder brother under her instruction.

The written complaint was marked as exhibit-I during trial of the

case. The statement of the de facto complainant recorded under

Section 164 of the Code of Criminal Procedure was marked as exhibit-

II in the trial.

Drawing my attention to the evidence of P.W.1 and the written

complaint, it is submitted by the Learned Advocate for the appellant

that lodging of complaint is shrouded by mystery and delay in lodging

complaint has not been explained by the de facto complainant. In

order to substantiate his contention it is submitted by the Learned

Advocate for the appellant that the complaint was lodged on 23 rd

March, 2015 narrating an incident that took place on 21 st March,

2015. In the written complaint, the de facto complainant did not give

any explanation for delay in lodging complaint. On the contrary, it is

stated by the de facto complainant in her evidence on oath that after

the incident dated 21st March, 2015 she returned to her paternal

home and from Chapra Bus Sand she was taken to local hospital and

admitted to the hospital for three days. Thus, if the evidence of the

de facto complainant is believed, she was discharged from the

hospital on 24th March, 2015. Therefore, she had no opportunity to

lodge complaint at least prior to 24 th March, 2015. But the complaint

was lodged on 23rd March, 2015. Therefore, it is easily presumed that

the de facto complainant is not telling truth either regarding the date

of lodging complaint or on the point of her medical treatment as

indoor patient in the hospital. When the de facto complainant was

telling lie on a simple question of the date of lodging complaint, the

Learned Advocate for the appellant has raised a question as to

whether her evidence should be believed or not.

It is argued by the Learned Advocate for the appellant that

suspicion arises on the date of lodging complaint because of the fact

that the complaint was forwarded to the Learned Magistrate at

Nabadwip on 27th March, 2015, i.e. four days after lodging the FIR.

The Investigating Officer of the case did not offer any explanation as

to why he violated the essential requirement of Section 157 of the

Code of Criminal Procedure where an Officer-in-Charge of a Police

Station is entrusted to forward a report and the written complaint

forthwith if there is a reason to believe that the written complaint

discloses commission of cognizable offence. Such delay in lodging

complaint is fatal for the prosecution. In support of his contention

Learned Advocate for the appellant refers to a decision of the Division

Bench of this Court in Rebati Baidya & Ors. -Vs.- State of West

Bengal reported in 2014 (1) CLJ (Cal) 67. In the said report it is

observed by the Division Bench that an FIR which has been received

belatedly by the Magistrate would have to be considered with caution

as the possibility of which being tampered cannot be ruled out.

Section 157 of the Code of Criminal Procedure mandates that the

report should be sent forthwith to the Magistrate empowered to take

cognizance of the offence. The Supreme Court has opined in Ishwar

Singh -Vs.- State of Uttar Pradesh reported in AIR 1976 SC

2423 that when no explanation is offered for the extraordinary delay

in sending the report to the Magistrate, it is a circumstance which

provides a legitimate basis for suspecting that the FIR was recorded

much later than the stated date and hour, affording sufficient time to

the prosecution to introduce improvements and embellishments and

to set up a distorted version of the occurrence.

It is further submitted by the Learned Advocate for the

appellant that the prosecution introduced the case against the

appellant with distorted version of the occurrence. In support of his

contention, he refers to injury report prepared by Dr. Aburba Kumar

Roy (P.W. 9) on 21st March, 2015. On that date the victim was

medically treated by Dr. Apurba Kumar Roy. During medical

examination, she complained of back ache and chest pain. She did

not state how she received injury on her back or chest on the date of

examination. In the FIR it was alleged by the de facto complainant

that she was attempted to be strangulated either with the help of

rope or by a 'saree' (some of the witnesses stated that she was tried

to be strangulated by rope and some others by 'saree'). She also

stated in the FIR that the mark of strangulation was visible around

her neck but surprisingly enough neither the de facto complainant

brought the said injury to the knowledge of P.W. 9, Dr. Apurba Kumar

Roy nor the Medical Officer found such injury.

Learned Advocate for the appellant further submits that

according to the de facto complainant the appellant who is her

brother-in-law was going on making indecent proposal to her for

about six months prior to the incident. She did not inform the matter

earlier to her husband or her relatives at her paternal home. It may

be a fact that some dispute cropped up on 21 st March, 2015 between

the de facto complainant and the appellant. But the allegation that

the appellant attempted to commit rape upon her or outraged her

modesty are wild allegations subsequently manufactured by the de

facto complainant and the Learned Trial Judge committed grave error

in convicting the accused under Section 354 of the Indian Penal Code.

Mr. Sandip Chakraborty, learned Public Prosecutor-in-Charge,

on the other hand, submits that though there is some contradictions

in the evidence on record, such contradictions may be overlooked in

view of the essential evidence adduced by the victim/de facto

complainant and other witnesses on behalf of the prosecution. The

de facto complainant stated that on 21 st March, 2015 she was

inappropriately touched and assaulted by her brother-in-law,

appellant herein. The said fact was corroborated by other witnesses.

As a result of such incident, the de facto complainant had to leave her

matrimonial home. While she was going to her paternal home at

Chapra, she became senseless. She was taken to Chapra Block

Primary Health Centre. She complained of chest pain though the

history of assault was not recorded by the Doctor. The incident of

assault and medical treatment took place within close proximity.

Considering such aspects of the matter, the judgment and order of

conviction passed by the learned Trial Judge should be confirmed.

Having heard the learned Counsel for the parties and on careful

scrutiny of entire evidence on record, it is found that the learned

Advocate for the appellant has rightly pointed out that the de facto

complainant did not offer any explanation as to delay in lodging the

FIR. There is also no explanation as to the delay of about 4 days in

transmitting the FIR to the learned Magistrate. Following the ratio

laid down by the Division Bench of this Court in Rebati Baidya

(supra) relying on the decision of the Hon'ble Supreme Court in

Ishwar Singh (supra) it is open for the Court to hold that when no

explanation is given for extraordinary delay in sending the first

information report to the Magistrate, it is open for the Court to hold

that the FIR was suspect, affording sufficient time to the prosecution

to introduce improvements and embellishments and to set up a

distorted version of the occurrence.

Be that as it may, the learned Trial Judge convicted the

appellant without considering the essential ingredients of offence

under Section 354 of the Indian Penal Code. In order to constitute

the offence under Section 354 of the Indian Penal Code, the following

ingredients are to be satisfied by adducing cogent evidence:-

        (i)        that the person assaulted must be a woman;

        (ii)       that the accused must have used criminal force on her,

                   and

        (iii)      that the criminal force must have been used on the

                   woman intending thereby to outrage her modesty.

The accused/appellant was also charged under Section 323 of

the Indian Penal Code. The learned Trial Judge acquitted the

appellant from the said charge under Section 323 of the Indian Penal

Code. When the appellant was acquitted from the charge under

Section 323 of the Indian Penal Code and no appeal is filed by the

State against the said judgment, it can be safely held that the

Prosecution failed to prove that the accused caused hurt to the de

facto complainant. In case of hurt, there must be use of criminal

force. When the charge of hurt fails, the ingredient of using criminal

force upon the de facto complainant will also fail. Moreover, in case

of outrage modesty, the evidence of the woman whose modesty was

outraged is of prime importance because mere knowledge that the

modesty of a woman is likely to be outraged is sufficient without any

deliberate intention of having such outrage alone for its object. In

Vidyadharan Vs. State of Kerala reported in 2004(1)SCC 215, it

was held by the Hon'ble Supreme Court :-

"Intention is not the sole criteria of the offence punishable

under Section 354 IPC, and it can be committed by a person

assaulting or using criminal force to any woman, if he knows that by

such act the modesty of the woman is likely to be affected.

Knowledge and intention are essentially two things of the mind and

cannot be demonstrated like physical objects. The existence of

intention or knowledge has to be culled out from various

circumstances in which and upon whom the alleged offence is alleged

to have been committed. A victim of molestation and indignation is in

the same position as an injured person and her testimony should

receive the same weight."

In the instant case, there is absolutely no evidence to show that

the appellant had the intention and knowledge that by assaulting or

using criminal force the modesty of the de facto complainant would be

outraged. The de facto complainant never stated in her evidence

that the specific act of the accused had outraged her modesty. Last

but not the least, when causing assault or criminal force was not

proved and the appellant was acquitted for the charge under Section

323 of the Indian Penal Code, question of outraging modesty by

assault or using criminal force does not arise at all.

For the reasons stated above, this Court is of the view that the

learned trial Judge erred in convicting the appellant and sentencing him

to suffer imprisonment for one year with fine and default clause for the

offence under Section 354 of the Indian Penal Code.

The impugned judgment and order of conviction is, therefore,

liable to be set aside.

Accordingly, the instant appeal is allowed.

The impugned order of conviction and sentence is set aside.

The appellant is discharged from his bail bond.

Let a copy of this judgment be sent down to the trial Court

along with the lower Court record.

(Bibek Chaudhuri, J.)